Ross v. Luypaert: Separating Shared Property Interests Through the Partition Act (Ontario)

Written By Samantha Weng

The Court of Appeal for Ontario recently reaffirmed in Ross v. Luypaert 2025 ONCA 236 that a co-owner of a jointly owned property located in Ontario may bring an application for a partition or sale under Section 3 of the Partition Act (Ontario) (Act). Generally, an application will be successful if the partition or sale would benefit the parties involved, and denied where the resisting party can establish that the applicant's conduct is malicious, vexatious or oppressive.¹

Facts

In order to fund their parents' continued care, the daughters of Regine Ross and John Douglas Ross (in their capacity as Mr. and Mrs. Ross' litigation guardians) brought an application under the Act for the sale of a duplex jointly owned by Mr. and Mrs. Ross with their son Rene Luypaert (Galt Property). They also asked the court to grant them possession of a residential property solely owned by Mrs. Ross and occupied by Mr. Luypaert (Bristol Property).

The application judge did so, and Mr. Luypaert appealed the decisions on the basis of procedural fairness and questions of fact.

The Law

The Act permits any person with a legal or an equitable interest in land in Ontario, including joint tenants and mortgagees, to apply for partition or sale of all or part of the land if the court considers partition or sale to be the best solution to the parties' problems.² The onus is on the resisting party to demonstrate that a partition or sale should not be granted by reason of the applicant's conduct being malicious, vexatious or oppressive, which is a high threshold to meet. Simply seeking a partition or sale does not itself amount to an oppressive or vexatious conduct "simply because it disappoints the other co-owner and makes her or him lament the loss of the property"³, nor does "unreasonably refusing to accommodate the wishes of the other co-owner" demonstrate sufficient reasons for the court to refuse a partition order.⁴

The remedy is not available in all situations, though. For example, the availability of partition and sale may be limited in family law matters or in the context of wills and estates.

Court of Appeal Findings

The Court found that the application judge did not err in ordering the sale of the Galt Property and possession of the Bristol Property.

For the Galt Property, Mr. Luypaert did not establish that the litigation guardians' conduct was malicious, vexatious or oppressive—despite his assertions otherwise.  He was also unable to support his claim of beneficial ownership of the property without evidence establishing the existence of a bare trust arrangement between him and Mr. and Mrs. Ross.

Respecting the Bristol Property, there was no written agreement conferring a legal right on Mr. Luypaert to occupy it.

Accordingly, his appeal was dismissed.

Takeaways

Ross v. Luypaert reminds us that the Partition Act (Ontario) can separate shared property interests under various circumstances.  However, it also serves as a reminder that the respective parties' rights are best served if they have been documented in a written agreement.

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